Disability discrimination: Dismissal of a menopausal employee was discrimination arising from a disability

The recent case of Davies v Scottish Courts and Tribunal Service serves as a useful reminder to employers that they must full consider the effects of any symptoms of health conditions before making decisions regarding employee conduct to avoid giving way to unfair dismissal and discrimination claims

In this case, the dismissal of an employee suffering from severe menopausal symptoms resulted in a finding of unfair dismissal and disability discrimination.

Background Law

Section 98 of the Employment Rights Act 1996 (ERA) affords employees the right not to be unfairly dismissed. Section 98 sets the threshold the employer must satisfy for a dismissal to be regarded as fair. The onus is on the employer to explain the reason for the dismissal and prove that it is justifiable, taking into account the specific circumstances of each case to determine whether the employer acted reasonably.

Section 15 of the Equality Act 2010 provides that an employer will unlawfully discriminates against an employee where it treats them unfavourably because of something arising in consequence of a disability, without justification. Whilst the employer needs to be aware of the employee's disability, there is no requirement to establish that his or her treatment is less favourable than that experienced by a comparator. The employee must simply establish that the unfavourable treatment is because of something connected to their disability.

Facts

The Claimant, Mandy Davies, had been employed as a Court Officer by the Scottish Courts and Tribunal Service (SCTS), for 20 years with a flawless service record. During 2014 - 2017, the Claimant was going through the menopause, which caused her to bleed heavily. As a result of this heavy bleeding, the Claimant became severely anaemic and felt 'fuzzy', emotional and lacked concentration at times. The Claimant was referred to a menopause clinic where she was put on a form of hormone replacement therapy which helped with the bleeding although it remained severe. The Claimant's line managers became aware of her condition around April 2016 and certain adjustments were made to the working practices to allow her to continue fulfilling her role. For example, it was agreed she would work in court rooms near toilets, she would no longer do jury court and was taken off mail duties.

In February 2017, the Claimant thought she had cystitis and was given medication from the nurse, which came in a granular form to be diluted in water. She took the medication to work with her on 22 February 2017 in a large pencil case (in which she kept her sanitary products and medication) with the intention of diluting and drinking it throughout that day. During the course of that day the Claimant escorted the Sheriff off the bench for an adjournment and when she returned to the court room she noticed that the items on her desk had been moved and the water jug on her table had been emptied. She could not remember if she had diluted her medication into the water.

Upon noticing two men in the public area of the Court drinking water, she immediately became concerned that they were drinking her medication. The Claimant approached the men and when she asked where the water had come from. They said the Clerk had given it to them. The men asked why her why she was concerned and she told them her medication may have been in the water, although she refused to disclose what the medication was because she was in an open court room. One of the men, known as 'Mr J', became very irate and started ranting; he made comments to suggest the Claimant was "trying to poison the two old guys in the court" and asked her if he would "grow boobs". The other man, known as 'Mr M', told Mr J to stop shouting otherwise he would remove him from the court.

The SCTS Health and Safety team were notified around 4pm that same day. They established the type of medication in question and took medical advice about the potential risks of taking it. Thereafter, a Health and Safety Officer attended at the homes of Mr J and Mr M to inform them of their findings. The next day, upon the SCTS's request, the Claimant provided a written account of what had happened and stated she had put the medication into the jug. On the same day, she was called to a Health and Safety investigation meeting held by Mr Miller and Mr McClintock. Prior to this meeting, it had become apparent that the medication was not in the water (as it would have turned pink and had a cranberry taste).

Following this, a Health and Safety report was produced by Mr Miller and it was found that there were no immediate health and safety issues surrounding the incident. However, going beyond the remit of the report, Mr Miller gave various opinions about the incident and made several observations regarding the Claimant. One particular comment stated: "there can be no doubt that Mandy would have known that [i.e. that there was medication in the water] not to be true as the water jug was clear and had no taste. In addition Mandy showed no remorse for her actions and did not appear worried they had taken this medication". The paper largely suggested that the Claimant had not shown the values and behaviours held by the SCTS and she had breached s.7 of the Health and Safety Act. The paper submitted that the incident amounted to gross misconduct by the Claimant and suggested that SCTS consider raising a formal disciplinary action.

The SCTS held a formal disciplinary procedure, the Claimant was dismissed and the decision was upheld on appeal. During the disciplinary process an occupational health report was obtained which revealed that the Claimant's condition lead to amnesia, tiredness, light headedness and even fainting, in addition to heavy bleeding. Nonetheless, during the disciplinary, it was decided that the Claimant had "knowingly misled" the men about her medicine being in the water.

Employment Tribunal decision

In September 2017 the Claimant brought claims of unfair dismissal and discrimination arising from a disability in the Employment Tribunal. It was agreed by the SCTS that the Claimant was disabled under at the relevant time due to her severe menopausal symptoms. Therefore, the issues to be determined by the Tribunal were: (i) what was the reason for the Claimant's dismissal and was it for a reason falling within section 98(1) of the ERA?; and (ii) was it fair under s.98(4)? If it was found to be fair, the Tribunal had to consider whether the dismissal was because of something arising as a consequence of the disability and, if so, could the SCTS show that the treatment was a proportionate means of achieving a legitimate aim.

In exploring these questions, the main focus of the Tribunal seemed to be on the negative Health and Safety report which was taken into consideration by the SCTS, as it had made damaging conclusions about the Claimant despite finding that the incident did not give rise to any immediate health and safety issues. The Tribunal decided that: "the health and safety investigation and report strayed into matters far out with its remit and tainted the subsequent disciplinary process, and we considered this a fundamental flaw". The Tribunal concluded that the Claimant was dismissed because the SCTS took the view that she had acted dishonestly in the days following the incident and lacked integrity during the course of the disciplinary proceedings.

However, the Tribunal found the Claimant be a wholly credible witness and decided the disciplinary process had been unfair due to the unjustified negative influence of the Health and Safety report. Ultimately, it was found that the SCTS did not have reasonable grounds to conclude that the Claimant had lied because: (i) it did not take into account her explanation that she was confused and stressed; and (ii) it ignored the fact her medical condition could cause memory loss and confusion.

Whilst the Claimant had partially contributed to her own dismissal, the Tribunal concluded that the dismissal was unfair and ordered the SCTS to reinstate her and pay £14,009.84 in relation to the loss of income suffered since the dismissal.

In relation the discrimination claim the Tribunal found that the dismissal was because of the confusion and stress arising in consequence of the menopause and the claim under s.15 was satisfied. The SCTS tried to argue that the dismissal was objectively justified on the basis that it required honest employees who act with integrity, however the Tribunal rejected this and awarded £5000 compensation for injury to feelings.

Comment

In this case the SCTS, as an employer, essentially failed to look at the situation as a whole. Fundamentally, they ignored the symptoms of a medical condition and failed to appreciate that a woman with the Claimant's menopausal condition could become easily confused and flustered. Furthermore, the Health and Safety report also failed to take this into account. The failure to consider the Claimant's circumstances was fatal to the dismissal being a fair one.

With regard to the disability discrimination, the Claimant was classified as disabled because of the symptoms of menopause. However, employers should not get caught up in whether or not the menopause is a disability. Instead, the focus should be on whether the employee they are seeking to manage has a medical history that could see them classified as disabled. In particular, employers should be aware that the effect that the symptoms have on the employee is crucial. Not all women going through the menopause will be disabled. Clearly in this case the effects were quite extreme and perhaps more detrimental than usual.